Medical Technology Advancements and the Impact on Divorce Practice

At an increasing rate, couples are turning to assisted reproduction technologies (ART) to create families that are preferential in size and structure. In vitro fertilization (IVF), is one of the more common forms of ART. This process involves procedures that extracts a woman’s eggs, fertilizes them in a laboratory, and then transfers the resulting embryos into a healthy uterus. This procedure is designed to result in a pregnancy and birth; however, in most cases, couples fertilize and store more embryos than they will necessarily use.

In the event of a divorce, the disposition of the frozen embryos becomes problematic on procedural moral and ethical grounds. Interestingly, the Michigan Court of Appeals has released three separate opinions in a recent case concerning frozen embryos; unfortunately, the opinions offer little guidance on how to address this difficult issue. Prior to this recent Court of Appeals decision, no Michigan appellate court had addressed a dispute over the disposition of embryos. As a consequence, there is no binding authority nor are there clear guidelines that attorneys can utilize in advancement of cases in Michigan where couples may have a dispute over the fate of their unused frozen embryos.

Until such time as binding precedent is established, Michigan attorneys and litigants are left to the laws of other states for guidance. The approaches previously taken by other states regarding the disposition of frozen embryos can be loosely classified into three different categories: (1) the contractual approach, (2) the contemporaneous mutual consent approach, and (3) the balancing approach. Under the contractual approach, courts will enforce contracts governing the disposition of frozen embryos which were entered into at the time of ART so long as they do not violate public policy. By contrast, the contemporaneous mutual consent approach proposes that no embryo shall be used by either partner, donated to another patient, used in research, or destroyed without the contemporaneous mutual consent of the couple that created the embryo. Finally, under the balancing approach, courts enforce contracts between the parties at least to a point and balance the interest in the absence of an agreement.

Television personality Sophia Vergara has been embroiled in a contentious Louisiana court battle with her ex-fiancé over their frozen embryos. Louisiana is the only state where embryos have legal rights of their own, rather than being considered property of the parents. The father was attempting to ship the frozen embryos from Louisiana to Beverly Hills, California. A Louisiana Federal Judge dismissed the case stating that the embryos, which had been cryogenically frozen since the couples IVF treatment in 2013, were actually citizens of California, where they were conceived, and therefore, the case needed to be filed in California.

In Michigan, the Court of Appeals released three opinions in the case of Karungi v Ejalu on September 26, 2017. The parents entered into a contractual agreement with an IVF clinic for cryopreservation of embryos. The Mother desired an implantation of an embryo in order to give birth to a healthy child and then use the stem cells from that child’s umbilical cord for transplantation to the parties’ older daughter, who suffered from a sickle cell disease. A dispute arose when the Father no longer wished to follow through with the plan. The Mother asserted that the court had jurisdiction to make a ruling on a disposition of the embryos as a custody determination. The trial court ultimately dismissed the Mother’s claim ruling that it did not have authority to consider the disposition of the embryos in a context of a child support case. The court concluded that it had no legal authority to award “custody” of the embryos to either parent. At the time the parents entered into contract with the IVF clinic, they agreed that the frozen embryos would be considered joint property of both parents, that should on parent die the survivor would retain sole ownership of the embryos, and if both parties died, the embryos would be thawed and discarded unless one of the parents left a valid directive in a will. The parents further agreed that if they were to divorce, the disposition of the embryos as set forth in the divorce decree would control. The ultimate decision of the Appellate Court majority was to remand the case back to the trial court in order to address the contract dispute between the parties. However, the majority opinion was accompanied by a written dissent by one of the Appellate Court judges who noted that there is no Michigan Law supporting the proposition that frozen embryos are persons subject to a custody determination.

It would appear on its face that this case as well as this issue will ultimately be resubmitted for Appellate Court review and instruction. In the meantime, what is clear is that law makers and Appellate courts will make their decision by considering the contrasting interests of both parents to find a resolution that is sensitive yet fair to each side – a task which Michigan trial courts in the family division are required to perform every day. Until the Appellate courts and law makers provide clear guidelines for navigating this uncharted territory where scientific technology has rapidly surpassed our traditional body of case law, the task for Michigan trial courts and litigants will remain exponentially more difficult.